JOSEPH E. AMELLO'S CASE.

320 Mass. 347

September 24, 1946 - November 2, 1946

Worcester County

Present: FIELD, C.J., LUMMUS, QUA, RONAN, & WILKINS, JJ.

There was no error in a denial by the Industrial Accident Board of an application by an employee under G. L. (Ter. Ed.) c. 152, Section 34A, inserted by St. 1935, c. 364, for further compensation on the ground that incapacity resulting from injury to his right hand and wrist was permanent and total, where a finding by the board of absence of total disability was warranted by evidence including testimony by the employee's physician that in his opinion the hand was "not totally disabled by any means, but it is certainly disabled for any gainful occupation that requires nimble and dexterous use of the hand. . . . [and] is not totally and permanently disabled for any gainful occupation."

CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the provisions of the workmen's compensation act.

A decree dismissing the claim was entered by order of Broadhurst, J.

In this court the case was submitted on briefs.

W. J. Moossa & H. J. Dumas, for the claimant.

E. E. Andrews, for the insurer.

WILKINS, J. On June 17, 1937, the employee, a repeating press operator, suffered an injury to his right hand which fractured the index finger and required amputation of the thumb. The insurer made payments to the maximum amount of $4,500, as provided in G. L. (Ter. Ed.) c. 152, Section 34, as amended by St. 1935, c. 332, Section 2, and St. 1941, c. 624, and in addition paid $400 as specific compensation for loss of the thumb, as provided in G. L. (Ter. Ed.) c. 152, Section 36, as appearing in St. 1935, c. 333. The employee applied for further compensation under G. L. (Ter. Ed.) c. 152, Section 34A, inserted by St. 1935, c. 364 (later amended by St. 1943, c. 276), on the ground that his incapacity is permanent and total. See as to Sections 34 and 34A, St. 1945, c. 717. The

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reviewing board adopted the decision of the single member denying further compensation under Section 34A, and in the Superior Court a decree was entered dismissing the claim of the employee, who appealed.

The reviewing board, by adoption of the decision of the single member, found that the motions of all four fingers are limited; that there is but little motion in the wrist, which is deformed; but that in "all other respects the employee is apparently all right." It was also found that "the employee has been left with a badly impaired right hand and wrist"; that "this impairment does not constitute a total disability"; and that "there are many types of work that the employee can do."

There was no error. The decision of the board is to stand unless it is unsupported by the evidence, including all rational inferences permitted by the testimony. Sawyer's Case, 315 Mass. 75 , 76. Amon's Case, 315 Mass. 210 , 214. Flaherty's Case, 316 Mass. 719 , 722. An examination of the evidence shows ample support for the decision of the board. Dr. Mulhern, a physician and surgeon, called as a witness by the employee, testified in detail as to the physical condition of the employee. To the question, "Have you an opinion as to whether he has unimpaired use of the right hand now?" he answered, "I have. The hand is not totally disabled by any means, but it is certainly disabled for any gainful occupation that requires nimble and dexterous use of the hand." When asked, "Have you an opinion as to whether or not he is totally and permanently disabled for any gainful occupation?" he testified, "I have an opinion. He is not totally and permanently disabled for any gainful occupation." It is unnecessary to make recital of the other evidence, which, it suffices to say, does not sustain the employee's contention that a finding different from that of the board was required as matter of law. Roney's Case, 316 Mass. 732 , 734. The present case is governed by Hummer's Case, 317 Mass. 617 , 623-624. Nothing to the contrary is contained in Frennier's Case, 318 Mass. 635 , where the board, upon supporting evidence, found that there was a permanent and total incapacity.